Citation Nr: 1705112
Decision Date: 02/21/17 Archive Date: 02/28/17
DOCKET NO. 09-10 613 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to service connection for a disability manifested by dizziness, headaches, and leg spasms, to include as due to an undiagnosed illness.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
Christopher Murray, Counsel
INTRODUCTION
The Veteran had active military service from May 1990 to July 1997.
This case initially came before the Board of Veterans' Appeals (Board) on appeal of a rating decision rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. As the Veteran resides in Germany, the Pittsburgh, Pennsylvania RO currently holds jurisdiction over the appeal.
This case was previously before the Board in April 2011, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development.
FINDING OF FACT
The Veteran has not been diagnosed by a chronic disability manifested by symptoms of dizziness, headaches, and/or leg spasms; such symptomatology has not been related by competent medical evidence as due to an undiagnosed illness, or to service or any in-service event or occurrence.
CONCLUSION OF LAW
A disability manifested by symptoms of dizziness, headaches, and/or leg spasms was not incurred in or aggravated by active duty service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1117 (West 2016); 38 C.F.R. §§ 3.303, 3.317 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).
VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002).
The instant appeal has been previously remanded for further development, specifically to provide the Veteran an examination and obtain a medical opinion regarding the Veteran's claim. Even though the examination was not conducted, and the opinion not obtained, the Board observes multiple attempts were undertaken to obtain this evidence. However, the Veteran has to date refused to attend the requested examination or submit equivalent medical evidence. See, e.g., February 2012 and April 2015 correspondence. As such, the Board finds there has been substantial compliance with the remand directives, and adjudication of the appeal may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.
Analysis
Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).
It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
Service connection may be established on a direct basis for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
The Veteran maintains entitlement to service connection for a disability manifested by symptoms of dizziness, headaches, and/or leg spasms. He asserts these symptoms are due to environmental hazards he was exposed to during his service in Southwest Asia.
Initially, the Board observes that there is no competent medical evidence of record which supports a diagnosis of a chronic disability manifested by symptoms of dizziness, headaches, and/or leg spasms. In the absence of proof of a present disability there can be no valid claim of service connection on a direct basis pursuant to 38 C.F.R. § 3.303. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran is competent to report these symptoms, as dizziness, headaches, and leg spasms are each capable of lay observation, such symptomatology is not germane in the absence of any resulting chronic disability for the purposes of direct service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (a "current disability" exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim).
To the extent the Veteran has claimed dizziness, headaches, and leg spasms may represent symptoms of an undiagnosed disability, the Board finds that service connection is not warranted under the provisions of 38 C.F.R. § 3.317 (2014) as they pertain to the presumption of service connection for disabilities related to service in Southwest Asia. In this regard, the record lacks sufficient competent medical evidence to allow the Board to determine whether the Veteran's claimed symptomatology is attributable to a known clinical diagnosis or to an undiagnosed illness.
The Board is not legally permitted to reach its own medical conclusions in determining the cause of the Veteran's reported symptomatology. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As noted above, following the Board's April 2011 remand, VA attempted on multiple occasions to obtain the requisite medical evidence and opinions; however, he refused to participate in a VA examination or obtain this evidence from his own private physician. "The duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 192 (1991).
In sum, absent a diagnosis of a chronic disability manifested by dizziness, headaches, and/or leg spasms at any point during the appeal period, service connection on a direct basis is not warranted. Further, as the record is insufficient to allow the Board to determine whether the Veteran's symptoms are the result of a known clinical diagnosis or an undiagnosed illness, and the Veteran has refused cooperation in VA's attempts to obtain such evidence, service connection is not warranted on a presumptive basis under 38 C.F.R. § 3.317. The preponderance of the evidence weighs against the Veteran's claim, and the benefit-of-the-doubt rule does not apply. Service connection for a disability manifested by dizziness, headaches, and leg spasms must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
Service connection for a disability manifested by dizziness, headaches, and leg spasms is denied.
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MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs